Fischer v. Roundy ( 2023 )

IN THE COURT OF APPEALS OF THE STATE OF IDAHO
Docket No. 50257
NEPHI FISCHER, )
) Filed: December 29, 2023
Petitioner-Appellant, )
) Melanie Gagnepain, Clerk
v. )
) THIS IS AN UNPUBLISHED
ELIZABETH ROUNDY, ) OPINION AND SHALL NOT
) BE CITED AS AUTHORITY
Respondent. )
)
Appeal from the District Court of the Seventh Judicial District, State of Idaho,
Jefferson County. Hon. Stevan H. Thompson, District Judge. Hon. Robert L.
Crowley, Magistrate.
Order of the district court, on intermediate appeal, affirming the magistrate court’s
judgment awarding child custody and support, affirmed.
Nephi Fischer, Idaho Falls, pro se appellant.
Beard, St. Clair, Gaffney, PA; Dan C. Dümmar Rexburg, for respondent.
________________________________________________
GRATTON, Judge
Nephi Fischer appeals from the district court’s decision on intermediate appeal affirming
the magistrate court’s judgment awarding sole physical and legal custody to the children’s mother
(Elizabeth), ordering ongoing reunification counseling with Elizabeth and the children without
Nephi, and requiring Nephi to pay child support in the amount of $1,663.60 per month. We affirm.
I.
FACTUAL AND PROCEDURAL BACKGROUND
Nephi and Elizabeth were never officially or legally married, but they had a spiritual
marriage ceremony in 1992. They have five children in common. For nearly six years, the three
youngest children were left in the custody of a third party, Josephine Nyborg, in Utah until
Elizabeth returned from another state and brought the children to Idaho. Nephi then filed a
paternity and custody action against Elizabeth for the three youngest children. The magistrate
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court ordered the children to be in the sole physical custody of Nephi for one year, and ordered the
children to be in the sole physical custody of Elizabeth for the following year. The magistrate
court then ordered Shelly Carson to serve as a parenting time evaluator and conduct a parenting
time evaluation (PTE). Additionally, Penny Rockhill was appointed to be the reunification
counselor for Elizabeth and the children. After a court trial, the magistrate court found that:
(1) Nephi is the biological father of the minor children; (2) it is not in the best interests of the
children to award joint custody to both parties; (3) it is in the best interests of the children to award
Elizabeth sole physical and legal custody; (4) the three younger children are to participate in
reintegration therapy without communication or visitation from Nephi and at the direction of
Rockhill; and (5) the three younger children are able to have phone visitation with paternal family
members. The magistrate court also ordered Nephi to pay Elizabeth $1,663.60 per month in child
support.
Nephi appealed to the district court, arguing that the magistrate court erred in awarding
sole physical and legal custody of the three younger children to Elizabeth, allowing Rockhill to
testify and present documents as a court-appointed expert at the court trial, ordering reunification
counseling for the three youngest children without Nephi’s involvement, and imputing $72,844.00
in income to Nephi and the resultant child support calculations. The district court affirmed. Nephi
again appeals.
II.
STANDARD OF REVIEW
For an appeal from the district court, sitting in its appellate capacity over a case from the
magistrate court, we review the record to determine whether there is substantial and competent
evidence to support the magistrate court’s findings of fact and whether the magistrate court’s
conclusions of law follow from those findings. Pelayo v. Pelayo, 154 Idaho 855, 858-59, 303 P.2d
214, 217-18 (2013). However, as a matter of appellate procedure, our disposition of the appeal
will affirm or reverse the decision of the district court. Id. Thus, we review the magistrate court’s
findings and conclusions, whether the district court affirmed or reversed the magistrate court and
the basis therefore, and either affirm or reverse the district court.
When a trial court’s discretionary decision is reviewed on appeal, the appellate court
conducts a multi-tiered inquiry to determine whether the trial court: (1) correctly perceived the
issue as one of discretion; (2) acted within the boundaries of such discretion; (3) acted consistently
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with any legal standards applicable to the specific choices before it; and (4) reached its decision
by an exercise of reason. Lunneborg v. My Fun Life, 163 Idaho 856, 863, 421 P.3d 187, 194
(2018).
III.
ANALYSIS
Nephi raises several issues on appeal. As a procedural matter, Nephi claims that the district
court erred in settling the transcript relative to the intermediate appeal to the district court. Next,
Nephi argues that the magistrate court erred in awarding sole legal and physical custody of the
children to Elizabeth. In support of this argument, Nephi contends that the magistrate court erred
in relying on an unreliable and biased PTE and that the magistrate court’s findings of fact are not
supported by the PTE. Specifically, Nephi argues that the PTE and the magistrate court
erroneously relied on improper definitions of alienation and domestic violence and improperly and
insufficiently analyzed the factors in Idaho Code § 32-717.1 Nephi also argues that the magistrate
court erred in allowing Rockhill to testify and present documentary evidence, and in ordering
reunification counselling without his involvement and with the current counselor, Rockhill.
Finally, Nephi argues that the magistrate court erred in imputing income to Nephi in calculating
child support.
A. Claims Raised For the First Time on Appeal
Before addressing the foregoing arguments, we first dispose of Nephi’s unpreserved claims
of error. Nephi argues for the first time on appeal to this Court that the magistrate court erred in
denying Nephi’s motions to allow the children a say in their choice of parent. Nephi further
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Incident to these arguments, Nephi claims that the custody order is not in the best interests
of the children because there is no time limit on the arrangement. This argument is redundant to
the analysis of the factors in Idaho Code § 32-717 and is not supported by argument and legal
authority. A party waives an issue on appeal if either argument or authority is lacking. Powell v.
Sellers, 130 Idaho 122, 128, 937 P.2d 434, 440 (Ct. App. 1997). Nephi also argues that the
magistrate court’s findings are unsupported because there is conflict between the testimony of
Carson and Rockhill with regard to custody and reunification responsibility. Nephi had the
opportunity to cross-examine these witnesses, has pointed to no material conflict in the testimonies
and, moreover, this Court does not reweigh the evidence. Plasse v. Reid, 172 Idaho 53, 65, 529
P.3d 718, 730 (2023) (“We are an error correcting court, not a finder of facts.”). Lastly, Nephi
argues that the PTE was seven months old at the time of trial, but presents nothing but his own
conclusion that the PTE was stale and unreliable. Again, we do not reweigh the evidence and
Nephi fails to support this argument with any legal authority. We will not further consider these
arguments.
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explains that he moved for the children to speak directly to the judge or another third party other
than Elizabeth or the parenting time evaluator. Nephi then argues that one of the children was
allowed to sign his name to an extensive complaint without a court order to do so, allegedly in
violation of Idaho Rules of Family Law Procedure 118(b). Nephi also argues for the first time that
the magistrate court erred in what is best for the children. In his argument, Nephi alleges that the
magistrate court relied solely on the report of the parenting time evaluator, Shelly Carson. Nephi
specifically alleges that the best interests of the children are not being met because the children
expressed their interest in an audio recording of their feelings towards Elizabeth, and hatred shown
by members on the Roundy farm where Elizabeth lives towards the children and their beliefs.
These issues were not raised in the district court on intermediate appeal. Where a party
appeals the decision of an intermediate appellate court, the appellant may not raise issues that are
different from those presented to the intermediate court. Wood v. Wood, 124 Idaho 12, 16-17, 855
P.2d 473, 477-78 (Ct. App. 1993). These issues, having been raised for the first time on appeal to
this Court, will not be considered.2
B. Settled Transcript on Intermediate Appeal
Nephi alleges that the district court erred by “allowing Elizabeth’s attorney Dan Dummar
to utilize trickery and technical legal maneuvering [] to get accepted as the ‘[S]ettled
Transcript[,]’[] a document containing 157 errors and outright alterations.” Nephi claims that he
objected to the additional transcript requested by Elizabeth’s attorney. Further, Nephi alleges that
the district court denied the corrections on a technicality and settled the transcript with the altered
version.
In Nephi’s argument, he provides no citation to the record. A party waives an issue on
appeal if either authority or argument is lacking. Powell v. Sellers, 130 Idaho 122, 127, 937 P.2d
434, 439 (Ct. App. 1997). It is the responsibility of the appellant to provide a sufficient record to
substantiate his or her claims on appeal. Id. In the absence of an adequate record on appeal to
support the appellant’s claims, we will not presume error. Id. Additionally, when issues on appeal
are not supported by provisions of law, authority, or argument, they will not be considered. Idaho
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To the extent Nephi has properly raised and supported the argument related to best interests
and choice of parent to the district court in his argument regarding application of the factors in I.C.
§ 32-717, they will be considered in the analysis of that claim.
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Appellate Rule 35. It is well-established that courts will apply the same standards and rules
whether or not a party is represented by an attorney and that pro se litigants must follow the same
rules, including the rules of procedure. Bettwieser v. New York Irrig. Dist., 154 Idaho 317, 322,
297 P.3d 1134, 1139 (2013). Pro se litigants are not entitled to special consideration or leniency
because they represent themselves. Id. Consequently, Nephi has waived this claim.
Nevertheless, the district court specifically reviewed this issue and concluded:
Despite Mr. Fischer’s claims that the transcripts included in the Clerk’s Record are
different or have been altered in some way by Ms. Roundy and/or her counsel, the
Court Clerk pulled those transcripts for the Clerk’s Record directly from the court
file. Ms. Roundy has not submitted any new transcripts. The transcripts contained
in the Clerk’s Record are the exact same transcripts that were lodged, settled, and
used in the appeal before this Court. While the transcripts may not be an accurate
reflection of the audio recordings from the trial, they are the exact transcripts that
Mr. Fischer’s previous counsel provided to this Court to be lodged and settled
during the appeal before this Court. The Court finds no basis for Mr. Fischer’s
objection.
Nephi has shown no error in the district court’s settlement of the record on intermediate appeal.
C. Rockhill Testimony
Nephi contends the district court erred in finding that the magistrate court did not abuse its
discretion in allowing Rockhill to testify as a court-appointed expert witness at trial. Nephi alleges
that there was never a written order appointing Rockhill as an expert. Nephi argues that the IRFLP
does not provide for a court-appointed counselor and there are no set guidelines or rules for such.
To the contrary, magistrate courts are given discretion to order services related to mental health,
parent education, and resources. IRFLP 1001(a)-(c). This includes assessments and evaluation,
counseling, parenting skills classes, and more. As the district court correctly concluded, the
magistrate court’s oral ruling was a sufficient order. Further, Nephi requested Rockhill to serve
as the reunification counselor in the original order of appointment by the magistrate court.
To the extent Nephi argues that the magistrate court otherwise erred in allowing Rockhill
to testify and present evidence at trial, he provides no legal authority as to why this was in error.
Further, neither party moved for strict compliance with the Idaho Rules of Evidence. Therefore,
pursuant to the rules, all relevant evidence was admissible. IRFLP 102(b)(1)-(2). Rockhill
provided relevant reports to the magistrate court before the trial began, giving both parties notice
of her findings. Rockhill’s reports contained information from her interviews and observations
with both parties, all the children, and third parties that are closely acquainted with the children.
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Her testimony and findings were relevant to this matter. Because Nephi has failed to present any
authority to the contrary, the magistrate court did not abuse its discretion by allowing Rockhill to
testify and present evidence as a fact and expert witness.3
D. Sole Physical and Legal Custody
Nephi alleges the district court erred in finding that the magistrate court did not abuse its
discretion in ordering sole physical and legal custody of the three younger children to Elizabeth.
First, Nephi claims the magistrate court’s findings are not supported by competent evidence as
they were nearly entirely based on Carson’s biased and unfounded opinions contained in the PTE.
Nephi alleges the PTE shows bias against him by focusing too heavily on Elizabeth’s concerns
and desires while dismissing his concerns and desires. To that end, Nephi argues that Carson’s
bias is shown in the choice of persons interviewed for the PTE who themselves are biased and with
whom he personally has issues. Second, Nephi argues the magistrate court improperly relied on
Carson’s concerns about alienating conduct by Nephi and his support system. Specifically, he
asserts that Carson and the magistrate court considered passive alienating conduct to be sufficient
when the law requires active alienation or a pattern of such conduct. Third, Nephi claims the
magistrate court relied on an overbroad definition of domestic violence used in the PTE. Finally,
Nephi contends that the magistrate court erred in analyzing the best interest factors in I.C. § 32-
717. We will address each claim in turn.
1. Bias
Nephi argues that Carson’s PTE “shows extreme bias and near fanatical reliance on the
statements of Elizabeth against Nephi” and that “the PTE is replete with allegations against Nephi
and all inferences are made contrary to his interests.” Carson was appointed to be the parenting
time evaluator for the purpose of providing the magistrate court “with information it may consider
to make decisions regarding custody and parenting time arrangements that are in the child[ren]’s
bests interests.” IRFLP 1004(a). A parenting time evaluator “perform[s] a judicial function when
conducting an evaluation.” IRFLP 1004(j). During the court trial, Carson testified about her
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Nephi claims that Rockhill was only disclosed as a fact witness and that there was no expert
witness disclosure. First, he fails to cite to anything in the record to support the claim. Second,
her expertise was the basis of her appointment. Third, Nephi did not argue for a sanction under
the rules for any untimely or inadequate disclosure. This claim is without merit.
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qualifications and experience as a parenting time evaluator. Carson prepared a comprehensive 53-
page report and testified accordingly.
Nephi’s claims that the magistrate court’s findings are unsupported due to reliance on a
biased PTE are without merit. Nephi has shown no bias or unsupportable conclusions in the PTE,
but only his personal disagreement with those findings and conclusions. While Nephi asserts that
the people interviewed for the PTE are the source of Carson’s alleged bias and what influenced
her decision, as the district court noted:
The Court does not find Nephi’s arguments that Carson was obligated to interview
the same number of collateral sources for each party and ask each party the exact
same questions to be persuasive. Such variation in conducting her investigation,
which she has the discretion to do, is not per se bias as Nephi argues.
Nephi fails to show that the information relayed to Carson was incorrect or that she did not properly
conduct her evaluation. Nephi’s disagreement does not show bias.
Moreover, rather than basing its order entirely on the PTE, the magistrate court made
findings based on the PTE, testimony from Elizabeth, Nephi, Carson, Rockhill, and the children’s
school counselor, as well as direct observations. This Court’s review of the magistrate court’s
findings in light of the PTE does not show that the magistrate court “fanatically” relied on the PTE
or anything of the sort. A trier of fact is not bound to interpret evidence in the same way as its
proponent would like. An adverse ruling, on its own, is insufficient evidence of bias. Plasse v.
Reid, 172 Idaho 53, 65, 529 P.3d 718, 730 (2023). Nephi has failed to show that the magistrate
court’s findings are not supported by substantial and competent evidence in the record.
2. Alienation
Nephi argues that because he was, at worst, passively rather than actively alienating the
relationship between the children and Elizabeth, his actions do not rise to the level of alienation.
The acts and conduct of the custodial parent resulting in the alienation of the love and affection
which children naturally have for the other parent is a vital and very serious detriment to the
welfare of such children and is grounds for modification of the decree with respect to custody.
Kelly v. Kelly, 165 Idaho 716, 728, 451 P.3d 429, 441 (2019). For the magistrate court to consider
actions as alienating behavior, Nephi argues he must have exhibited a “pattern of conduct designed
to drive a wedge between the children and the other spouse.” Nephi argues that Doe v. Doe, 161
Idaho 67, 76, 383 P.3d 1237, 1246 (2016) holds passivity is insufficient for a finding of alienation.
Nephi is incorrect. The Idaho Supreme Court held in Doe that a mother texting with her children
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negatively about their father, moving thirty minutes away, and having a conversation with the
older children about the details of the ongoing family court proceeding, was not enough to find the
mother engaged in a “systematic effort to alienate the children from Father or to shake the
foundation of the children’s love and affection for their Father.” Id. at 77, 383 P.3d at 1247. The
behavior by Nephi that the magistrate court considered in this case differs greatly from the
mother’s behavior in Doe. Nephi’s alienating conduct, as described by the magistrate court went
beyond passivity:
The court has found, however, that Nephi has done very little to facilitate
Elizabeth’s visitation and association with the three youngest children when he had
the opportunity to do so. He has, in fact, by his conduct, or lack thereof (passivity
as the parenting time evaluator referred to it) contributed to the lack of attachment
by the three youngest children with Elizabeth. He has failed to support Elizabeth in
correction of the three youngest children when they have destroyed her property,
when they have called her inappropriate names and when they have treated her
inappropriately physically. Nephi has said derogatory things to the three youngest
children about Elizabeth.
The magistrate court noted its great concern as to Nephi’s reaction to the children
vandalizing Elizabeth’s car. The magistrate court referenced a recounting of the incident in the
PTE:
Father was informed of the destructive behavior of the children. In an audio
conversation provided by Mother in which she has asked Father to look at the
vandalism caused to her car by the children, Father can be heard saying how it was,
“a work of art,” and made a couple of sounds of “awe” while looking at Mother’s
car.
As correctly noted by the district court, it is not proper for an appellate court to second-guess a
finding of the trial court just because there is conflicting evidence. The evidence in the record
supports a determination by the magistrate court that Nephi exhibited a pattern of conduct
constituting alienating behavior.
3. Domestic Violence
Domestic violence is one of the factors for determining child custody in I.C. § 32-717.
Nephi argues that because Carson addressed domestic violence “in a broader context than the
statutory definition,” the magistrate court erred in relying on the PTE. However, the magistrate
court did not rely on any broader definition that may have been in the PTE. Although the
magistrate court noted that the PTE included analysis of a definition of domestic violence that was
broader than the statutory definition, the magistrate court did not make any findings or conclusions
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adopting the broader definition. As noted by the district court, “There is no argument from [Nephi]
that the magistrate court even considered domestic violence as part of its analysis.” Nephi has
failed to show error regarding the magistrate court’s consideration of domestic violence as a factor
under I.C. § 32-717.
4. Idaho Code § 32-717Finally, Nephi contends that the magistrate court failed to properly analyze the factors in
I.C. § 32-717 for determining the best interests of the children. Idaho appellate courts review a
magistrate court’s findings and conclusions governing child custody under an abuse of discretion
standard. Poesy v. Bunney, 98 Idaho 258, 261, 561 P.2d 400, 403 (1977). Likewise, the standard
of review on an appeal from a child support award is whether the court abused its discretion.
Atkinson v. Atkinson, 124 Idaho 23, 25, 855 P.2d 484, 486 (Ct. App. 1993). When a trial court’s
discretionary decision is reviewed on appeal, the appellate court conducts a multi-tiered inquiry to
determine whether the trial court: (1) correctly perceived the issue as one of discretion; (2) acted
within the boundaries of such discretion; (3) acted consistently with any legal standards applicable
to the specific choices before it; and (4) reached its decision by an exercise of reason. Lunneborg,
163 Idaho at 863, 421 P.3d at 194.
A trial court has great discretion to weigh the strength and the credibility of evidence to
make factual findings. Voss v. Voss, 169 Idaho 518, 527, 497 P.3d 1138, 1147 (Ct. App. 2021).
On appeal, the court liberally construes the trial court’s credibility findings because the trial court’s
province is to determine the witnesses’ credibility, the weight to be given their testimony, and the
inferences to be drawn from the evidence. Id. The appellate court will not substitute its judgment
for that of the trial court except in cases where the record reflects a clear abuse of discretion.
Woods v. Woods, 163 Idaho 904, 906, 422 P.3d 1110, 1112 (2018).
In support of his claim that the magistrate court erred in its I.C. § 32-717 analysis, Nephi
essentially disputes the findings by merely pointing to his version of the facts and how they should
be applied. Nephi misunderstands our role on appeal. The Idaho Supreme Court recently
explained:
We heard and understood Reid’s frustrations with the outcome of these
proceedings before the magistrate court, and, certainly, a fundamental tenet of our
judicial system is the right to appeal adverse rulings. However, we rejected his
arguments because they were unsubstantiated or if substantiated, immaterial in the
scheme of things. The lack of support for Reid’s arguments appears to be rooted in
his misunderstanding of the legal process. Throughout this litigation, Reid has
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attempted to have different courts reconsider evidence until they side with him.
However, the appeals process exists to correct errors made below, not to give parties
a second attempt to have their arguments considered by an additional trier of fact.
We are an error correcting court, not a finder of facts.
Plasse, 172 Idaho at 65, 529 P.3d at 730. Nephi’s claims are not grounded in a failure of evidence
to support the magistrate court’s findings, but are a re-argument of why his position should have
been adopted by the magistrate court.
The magistrate court acknowledged that this case was difficult and noted that Carson
deemed it to be a moderate to severe case. In recognition of this, the magistrate court devoted ten
pages of analysis of the I.C. § 32-717 factors. The magistrate court weighed all relevant factors,
did not overemphasize any individual factors, and ultimately determined what is in the best
interests of the children. As required by I.C. § 32-717, the magistrate court considered (a) the
wishes of the parents; (b) the wishes of the children; (c) the interaction and interrelationship of the
children with the parents and siblings; (d) adjustment of the children to the home, school and
community; (e) character of the individuals involved; (f) the need to promote continuity and
stability in the lives of the children; and, (g) domestic violence (as noted above).4 In addition, the
magistrate court considered that the parents have had varying degrees of custody orders, all of
which have been unsuccessful. It also considered the difficulty the parents have in communicating
with each other, the different desires the parents have for educating the children, the difficult
visitation arrangements, long periods of absence from the children, and the inability of the parents
to settle disagreements. These factors led to the determination of what is in the best interests of
the children, and the magistrate court concluded that sole legal and physical custody with Elizabeth
is in their best interests. Nephi has failed to show the magistrate court abused its discretion in
awarding sole physical and legal custody to Elizabeth.
E. Reunification Counseling Without Nephi
Nephi alleges the district court erred in finding that the magistrate court did not abuse its
discretion in ordering reunification counseling between the three youngest children and Elizabeth
without Nephi’s involvement. Nephi again provides no authority for this claim. However, the
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Nephi has suggested that the magistrate court failed to address the character of the
individuals involved. However, we agree with the district court that, while stylistically the
magistrate court did not go through the factors in order, “the character and circumstances of those
involved in this case was one of the factors given the most consideration by the magistrate court.”
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record shows that the magistrate court heavily considered the best interests of the children when
ordering reunification without Nephi. The magistrate court found that the “alienating narrative
and coaching of the children by [Nephi] and his support system” would hinder reunification efforts
between Elizabeth and the children. The court further explained that it was aware of and concerned
with how much time Nephi would be kept from the children. While balancing these concerns, the
court found that reunification counseling without Nephi is in the children’s best interests to reunify
with their mother. The magistrate court noted that this would be best for the time being and would
be subject to frequent monitoring by the court. Consequently, Nephi has the ability to demonstrate
to the magistrate court a change in circumstances sufficient to modify the custody order.
As to Nephi’s arguments that the IRFLP does not allow for a court ordered reunification
counselor; that Rockhill was not following Carson’s recommendation in the PTE; and that the
appointment and reliance upon the unfettered discretion placed in Rockhill is “beyond the
discretion of the Magistrate Court,” we have rejected those arguments as set forth above. Nephi
provides no other argument or legal authority for his claim. As the district court acknowledged,
the custody order is reasonable due to the unique circumstances of this case. Nephi has not shown
that the magistrate court erred in ordering reunification therapy without Nephi’s involvement.
F. Child Support
Nephi alleges the district court erred in finding that the magistrate court did not abuse its
discretion in imputing income to Nephi and the related amount of child support calculated for him
to pay Elizabeth. Nephi again fails to provide any legal authority as to how the magistrate court
committed reversible error. Nephi alleges that the court did not follow Idaho Guideline 126 and
120, presumably referencing the Idaho Child Support Guidelines. This citation is inadequate and
Nephi cites no provision of those guidelines that are applicable to this issue or how they support
his claim. Therefore, this issue is also waived; however, this Court will briefly address its merits.
When determining child support amounts, the magistrate court took note of the exhibits
presented at trial, the testimony of the parties, and Nephi’s affidavit. Nephi’s affidavit verifying
his income in accordance with IRFLP 401 stated his annual income at $74,844, which the
magistrate court adopted. At trial, though, Nephi testified that he was “just guessing” but that his
income for the next year could be between “40 and 65,000 a year.” However, he also testified that
he works by the hour, his last employer was willing to pay him $40 per hour, he has extensive
training and education, and he was then working as a private contractor. As noted by the
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magistrate court, $40 per hour would translate into $83,200, yet the magistrate court adopted the
lower amount of $72,844 that Nephi attested to in his income verification affidavit. On
intermediate appeal, the district court correctly determined that the magistrate court was well-
within its discretion to disregard an estimated number in favor of the specific amounts Nephi
provided, particularly since the trial court was giving due consideration to the changing
circumstances of Nephi’s employment by not using the $40 per hour that Nephi claimed he was
making at the time of trial. Nephi has failed to establish error by the district court in its decision
affirming the magistrate court’s imputation of income to Nephi and the related child support
award.
G. Attorney Fees
Nephi requests attorney fees and costs on appeal. Because Nephi is not represented by
counsel on appeal, an award of attorney fees would be without legal or factual support. Moreover,
in order to recover attorney fees, a party must first prevail on the merits. Weaver v. Weaver, 170
Idaho 72, 79, 507 P.3d 1102, 1109 (2022). Nephi is not the prevailing party.
Elizabeth requests attorney fees and costs on appeal. Elizabeth seeks attorney fees pursuant
to I.C. § 12-121. An award of attorney fees may be granted under I.C. § 12-121 and I.A.R. 41 to
the prevailing party and such an award is appropriate when the court finds that the appeal has been
brought or defended frivolously, unreasonably, or without foundation. In Plasse, the Idaho
Supreme Court held:
[I]t is clear from the record that Reid appealed the magistrate court’s amended
judgment and decree “frivolously[.]” I.C. § 12-121. This Court has previously held
that where the non-prevailing party “continued to rely on the same arguments used
in front of the [] court, without providing any additional persuasive law or bringing
into doubt the existing law on which the [] court based its decision[,]” an award of
attorney fees under section 12-121 is warranted.
Plasse, 172 Idaho at 65, 529 P.3d at 730 (quoting Thornton v. Pandrea, 161 Idaho 301, 320, 385
P.3d 856, 876 (2016)).
We conclude that Elizabeth is the prevailing party and is entitled to an award of attorney
fees pursuant to I.C. § 12-121. In large measure, Nephi’s appeal is unsupported by argument or
legal authority. He repeatedly asks this Court to reweigh the evidence in a light more favorable to
his position, which is outside the scope of appellate court review. No procedural or substantive
error by the magistrate court or the district court in affirming the magistrate court has been shown.
Nephi’s repeated claims of bias are without basis. We award attorney fees and costs to Elizabeth.
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IV.
CONCLUSION
The district court did not err in affirming the magistrate court’s judgment awarding sole
legal and physical custody to Elizabeth. Nephi has shown no error in the admission of Rockhill’s
testimony, in ordering reunification counseling without Nephi’s involvement, or in imputing
income to Nephi in determining child support. Therefore, the decision of the district court, on
intermediate appeal, affirming the judgment of the magistrate court is affirmed. Attorney fees and
costs are awarded to Elizabeth.
Chief Judge LORELLO and Judge HUSKEY CONCUR.
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